Hon. C. G. Haas Opinion No. M- 832

Secretary,Board of Regents Stephen F. Austin State University Re: Authority of Stephen F. Nacogdoches, Texas 75961 Austin State University

Dear Mr. Haas: to jointly own, or lease, a football stadiumwith an independent school district, and related question.
Your concerning the

"(1)recent letter requesting the opinion of this office referencedmatter poses the followingquestions:
Can the University jointlyown a stadium with an individual school district: "(2) Can the University enter into. a **long** term lease for a stadium owned by an independent school district; "(3)Would the enactment of **a** new statute authorizing either of the first two above achieve the necessary authority for the University to do either of the above two proposals?" Article 2909a,Vernon's Civil Statutes,was enacted in 1939 and has remained unchanged to the present time; it provides, in part, as follows:

"Section 1. The Board of Directors of Texas Technological College, the Board of Directors of the Texas Agricultural and Mechanical College, the Board of Regents of the University of Texas, the Board of Directors of the State Teachers' Colleges of Texas, the Board of Directors of the Texas State College **for** Women, and the Board of Directors of the College of Arts and Industries,are hereb authorized and empowered to erect and eqiy-3gd u to contractwith any person, firm or corporation, **?or** the erection, completion and equipping of aormitories, cottages or stadiums, to be erected
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### Hon.C. G. Haag,page 2 (M-832)



### eitheron the campus 

### or real 

### estatethenowned by saidcolleges,or on 

### otherreal estate purchased or leased for the purpose, and the said Boards of Directors 

### arehereby xp ly authorized to purchase, or lease, a~di:~~~al real estate for such purposes . . . "Sec. 2. The Boards aforesaid are hereby authorized and empowered to enter into contracts with municipalitiesor schooldistricts for the of museums, librarybuildings, ings as may be deemed necessary . . .'1 (Emphasisadded.) Stephen F. Austin State University (Article2647f,V.C.S.) was a State Teachers College at the time of the enactment of Article 2909a, supra, and is, therefore, one of the institutions covered by the provisionsof thatArticle. SeeArticle 2647f, Vernon's Civil Statutes. Its control and management is vested in **a** board of nine regents,which is empowered to exercise the same powers, duties, and responsibilitiesas were formerlyexercised by the Board of Regents, State Senior Colleges. Article 2647f-1, Sections 1 and 9,Vernon's Civil Statutes. This Board 

### was formerlythe Board of Regents of the State Teachers Colleges. SeeArticle 2644a, Sec. 1,Vernon's Civil Statutes.

Under Article 2647,Vernon's Civil Statutes, the Board of Regents of the Universityhas the responsibilityof the general control and management of the institutionand is expressly given the power and authority to acquire either by "purchaseor condemnation" such landswithin 

### the countieswhere such University is located as the board "may deem expedient" for the 

### use of the University "forpurposes necersary in the conduct thereof." As we view this broad grant **of** power, the purchase relative to land "generallymeans the acquisitionof real estate by any means 

### whateverexceptby descent." Black's Law Dictionary, Fourth Edition, citing Kelly v. Southworth, 38Wyo. 414, 267 P. 691, 692 (1928);Lindburg v. Bennett, 117

### Neb. 66, 219N.W. 851, 855 (1928); Oklahoma City v. Board of Education of Oklahoma City, 181 Okl. 539, 75 P.2d 201 (1938

.

The Board of Regents of the University under Article 2909c,Vernon's Civil Statuter, is furtherexpressly authorized to "conduct,acquire, improveand equip

. . .buildings and other structurea
. . . and acquire 

### landfor 

### saidadditions,buildings and other 

### 8tructuresif deemed appropriateby said governing body. Said

. . .organieationmay be accomplished inwhole **or** in part with proceeds **of** loans

### obtainedfrom 

### anyprivate or public source."
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The board may also,Mithout cost to the State of Texas, acquire or construct dormitories,kitchens, and dining halls, hospitals, libraries, student activitybuildings, gymnasia, athletic buildings and stadia, and such other buildings as may be needed for the good of the institutionand themoral welfare and social conduct of the students

. . .I' See Article 2603c,Vernon's Civil Statutes.

The authority to "acquire"means to gain by any means (Black'sLaw Dictionary, 4th Edition, p. 41) and acquisitionby leasewould be included.

In Attorney General's Opinion No. O-6911 (19451,this office held that'the Board of Regents of the State Teachers College is authorized to lease the land in question to the City of Nacogdoches under a long-term lease for the purpose of jointly constructingbuildings considered necessary" for athletic and recreational facilities, including a football field, etc.

While not the subject of inquiry,we note in passing that a special fundwas establishedby the College Building Amendment (ArticleVII, Section 17, Constitution of Texas) for the purpose of acquiring, constructing and initially equipping buildings or other permanent improvements for the designated colleges, and as to those participating in such fund, it is furtherprovided that they "shallnot thereafter receive any other state funds" for such acquisition or construction forwhich the five cents ad valorem tax is therein provided, except in case of the contingencies specified. This does not prohibit, hovJever, the Legislature frommaking appropriations for the acquisition of additional land or other type permanent improvements. Attorney General's Opinion No. V-927 (1949).

We have also found authority in Section 20.50 of the Texas Education Code expressly authorizing contracts for any period, not exceeding 75years, with terms as may be agreed upon by the parties, to be entered into by and between independent school districts and anv corooration. citv. or anv institution of higher learning, "fo; the-use of 

### any s'&di.um 

### and other athletic facilities owned by or under the control of any such entity." - . ..* __- In view of all of the foregoing, including the cited statuteswhen read in par1 materia, we have no doubt that Stephen F. Austin State Universityhas the power to acquire an ownership interest in an existing stadium owned by another entity, or to lease such a stadium. We accordingly answer your first two questions in the affirmative.

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We are unable to answer your third question,which is entirely conjectural, for thiswould violate the settledpolicy of this office againstpassing on the text of a nonexistent,hypothetical statute. SUMMARY

Stephen F. Austin State Universitymay acquire a joint ownership interest in a football stadium owned by an independent school district, or may enter into a long-term lease for a football stadium owned by such school district. Very truly yours, CRAWFORD C. MARTIN Attorney General of Texas

BY%72?,42fz NOLA WRITE First Assistant Preparedby Austin C. Bray, Jr. Assistant AttOMey General APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E. Allen, Co-Chairman Bob Davis James McCoy Bob Lattimore Richard Chote
WEADE F. GRIFFIN Staff Legal Assistant
ALFRED WALKER ExecutiveAssistant

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